The Adam Walsh Act needs to be amended – now.
The act was designed to make sex offender registration uniform across the United States. It contains many detailed and complex requirements. Those requirements are so stringent that to date no jurisdiction is compliant. While states only lose certain grant funds if they fail to comply, tribes lose their sovereignty. Urgent action is needed to extend the time tribes have to comply with the act’s mandates.
While states only lose certain grant funds if they fail to comply, tribes lose their sovereignty.
Without state or tribal input, the act was passed July 27, 2006. Nonetheless, section 127 required tribes to either comply with its complex mandates or lose jurisdiction to states. It further required tribes to pass resolutions expressing their intent to comply prior to July 27, 2007 to preserve tribal authority. Given the threat of losing sovereignty, 198 tribes opted to assert jurisdiction under the act by timely passing resolutions opting in.
The National Congress of American Indians passed two resolutions calling on Congress to amend the act. Resolution 07-003 is a call for comprehensive amendments to strike provisions that would divest tribes of sovereign regulatory powers and to consult with tribal governments to determine how best to include tribal nations in the national sex offender registry. Resolution 08-028 is a more modest call for an extension of time and for technical amendments to clarify uncertain provisions and close gaps in the existing legislation. Neither request has been honored.
Tribes have been given until July 27 to “substantially comply” or lose their sovereign power to regulate sex offenders to states. That is only four months away. To date, no one is fully compliant with the act: no state, no tribe and no territory. Adding insult to injury, the United States Department of Justice has interpreted the act to permit the loss of tribal jurisdiction to non-compliant states. States, unlike tribes, only lose grant money for non-compliance. Furthermore, DOJ has interpreted substantial compliance as requiring full compliance. Whether Congress realizes it or not, by creating such a short time frame and stringent conditions, tribes have been set up for failure.
States have been required to maintain comprehensive sex offender registries since passage of the Wetterling Act in 1994 and have maintained public registries since passage of Megan’s Law in 1996. Under the Adam Walsh Act, tribes are held to the same exacting requirements as states. However, most tribes, if not all, have no prior experience maintaining public sex offender registries of the act’s mandatory level of complexity and have little or no resources to do so.
Normal 0 false false false EN-US X-NONE X-NONE MicrosoftInternetExplorer4 To date, no one is fully compliant with the act: no state, no tribe and no territory.
The act’s final guidelines were disseminated in July 2008. No tribe could have begun to seriously develop a compliant system until those guidelines were issued. Consequently, tribes have been given one year to develop a highly complex public sex offender registry system of the type states have been operating for well over a decade, and have been afforded little to no resources to assist them.
Two one-year extensions are permitted under the act; however, DOJ is maintaining that such extensions are not going to be automatically granted on request. Tribes must show what they have done to comply in an effort to show they will be compliant at the end of the extension period. Those extension requests are due April 27 – only one month away and only 10 months after the final guidelines were issued. To date, eight tribes have been granted a one year extension– only four percent of those that have opted in, leaving 96 percent in limbo.
Indian law experts were convened by DOJ’s SMART Office to help develop a template code and policy and procedures manual to assist tribes in implementing the act. These were completed in November 2008, but DOJ has yet to approve them, thereby delaying their dissemination to tribes. It is unclear if they will be approved prior to July 27, let alone the extension request deadline. Furthermore, DOJ has yet to fully develop a compliant national web registry for tribes to use. Operation of such a registry is required for tribes to comply with the act.
Normal 0 false false false EN-US X-NONE X-NONE MicrosoftInternetExplorer4 This act needs to be amended immediately to extend the time for tribes to comply with its complex and detailed requirements.
Many tribes may have to rely on state resources to comply. In such cases, intergovernmental agreements will have to be developed to clarify how resources and duties will be shared between states and tribes. However, many states appear to be waiting to see how others fair in implementing such a system before deciding to comply themselves. It is rumored that some will likely not implement the act due in part to the fact that they only lose grant funds that have already been significantly depleted, and the reality is that it may be more cost effective to lose the grant money than comply. Consequently, many tribes may have to wait to see what states do before they can realistically assess how they are going to implement the act’s requirements.
This act needs to be amended immediately to extend the time for tribes to comply with its complex and detailed requirements. Tribes ought to be given twice the time states have had to comply, which would be 2012. In the interim, consideration should be given to needed technical amendments clarifying poorly worded language and filling in gaps left open by the current legislation due in large part to the failure of Congress to consult with tribes and states in its drafting.
I urge you to write your United States senators and house representatives asking them to amend the Adam Walsh Act to allow tribes more time to comply with mandates. Letters should also be sent to Sen. Byron Dorgan and Sen. John Barrasso, chair and vice chair, respectively, of the Senate Committee on Indian Affairs, as well as to Senate Judiciary Committee Chairman Sen. Patrick Leahy and ranking member Sen. Arlen Specter.
Antone Minthorn is chairman of the Board of Trustees for the Confederated Tribes of the Umatilla Indian Reservation in Oregon.